US Supreme Court Briefs

No. 00-836 ========================================In the SUPREME COURT OF THE UNITED STATES ------------- GEORGE W. BUSH,                                Petitioner, v. PALM BEACH COUNTY CANVASSING BOARD, ET AL. -------------- On Writ of Certiorari to the Supreme Court of Florida -------------- BRIEF FOR THE STATE OF ALABAMA, THE ATTORNEY GENERAL OF ALABAMA, AND THE SECRETARY OF STATE OF ALABAMA, AS AMICI CURIAE, SUPPORTING REVERSAL --------------                           Counsel for Amici Curiae                               BILL PRYOR                                               Attorney General of Alabama                            Counsel of Record          OFFICE OF THE             MARGARET L. FLEMING          ATTORNEY GENERAL          JOHN J. PARK, JR.            State of Alabama          CHARLES B. CAMPBELL          11 South Union Street     SCOTT L. ROUSE               Montgomery, Alabama       A. VERNON BARNETT IV         36130-0152                RICHARD E. TREWHELLA, JR.    (334) 242-7300            Assistant Attorneys General  ========================================


In this Brief, amici curiae address the following question:

1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of controversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. § 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day.


The State of Alabama, the Attorney General ofAlabama, Bill Pryor, and the Secretary of State ofAlabama, Jim Bennett, respectfully submit this Brief asamici curiae pursuant to Sup. Ct. R. 37.4. Amici submitthis Brief because of the striking similarities between thiscase and an Alabama case decided by the United StatesCourt of Appeals for the Eleventh Circuit five years ago,Roe v. Alabama, involving the counting of unwitnessedabsentee ballots in the 1994 election for Chief Justice ofthe Supreme Court of Alabama. That case resulted in aseries of decisions from the Eleventh Circuit holding thata post-election change in the procedures for countingabsentee ballots violated the First and FourteenthAmendments, which require state election procedures tobe fundamentally fair. See Roe v. Alabama, 43 F.3d 574(11th Cir.) ("Roe I") (certifying question to Supreme Courtof Alabama), remanded to district court for evidentiaryhearing after certified question answered, 52 F.3d 300(11th Cir.) ("Roe II"), cert. denied, 516 U.S. 908, appealafter remand to district court, 68 F.3d 404 (11th Cir.)("Roe III"), stay denied sub nom. Hellums v. Alabama, 516U.S. 938 (1995). The Petitioner in this case expresslyrelied upon these decisions of the Eleventh Circuit inrequesting review by this Court. See Pet. for Cert. at 1718; 2226; Pet. App. at 63a64a. The State of Alabama,by and through its Attorney General, and the Secretary ofState of Alabama were defendants in Roe v. Alabama.See Roe I, 43 F.3d at 574; Roe II, 52 F.3d at 300; Roe III,68 F.3d at 404. The current Attorney General ofAlabama, then a deputy attorney general, personallyrepresented the State and the current Secretary of Statein that litigation. See Roe II, 52 F.3d at 300; Roe III, 68F.3d at 404; see also Roe v. Mobile County Appointing Bd.,904 F. Supp 1316, 1317 (S.D. Ala.), aff'd sub nom. Roe v.Alabama, 68 F.3d 404 (11th Cir.), stay denied, 516 U.S.938 (1995).

Relying on the constitutional principles applied in Roev. Alabama, the State of Alabama reformed its electionlaws to ensure that Alabama courts cannot change therules for counting absentee ballots after an election. SeeAla. Code § 17-10-10 (Supp. 2000) ("No court or otherelection tribunal shall allow the counting of an absenteeballot with respect to which the voter's affidavit signature(or mark) is not witnessed by the signatures of twowitnesses 18 years of age or older or a notary public (orother officer authorized to acknowledge oaths) . . . ."). TheAttorney General and Secretary of State have relied onRoe v. Alabama in enforcing the election laws of Alabama,advising election officials, and ensuring that electionprocedures in Alabama are and remain fundamentallyfair. See, e.g., Opinion to the Hon. Leland Avery, HaleCounty Probate Judge, Ala. A.G. Op. No. 2000-180, at 4(June 26, 2000) <> ("[T]he United States Court of Appeals forthe Eleventh Circuit has held that a systematic countingof unwitnessed and unnotarized absentee ballots violatesthe voting rights of those voters who complied with thestatutory mandates."); Opinion to the Hon. Jim Bennett,Secretary of State, Ala. A.G. Op. No. 99-00227, at 3 (May31, 1996) <> ("In this circumstance, under the Roe decision,the state election officials cannot count unwitnessedabsentee ballots without violating the [F]ourteenth[A]mendment.").

Having now relied on the principles of due processapplied in Roe v. Alabama for several years, amici have aprofound interest in seeing those principles upheld andconsistently enforced, especially in the unique context ofthe election of the President and Vice President of theUnited States, in which all States have a profoundinterest. Accordingly, amici curiae file this Brief toaddress the due-process component of the first question inthis case. In so doing, amici argue that the judgment ofthe Supreme Court of Florida must be reversed becausethat court changed the rules governing the duties of theSecretary of State of Florida, as well as the rulesgoverning election protests and contests in Florida, inviolation of due process and 3 U.S.C. § 5 (1994). Amiciurge this Court to uphold the First and FourteenthAmendment guarantees of fundamentally fair electionprocedures so that States may not, after an election,retroactively change their canvassing, certification, andcontest procedures to alter the outcome of an election.



Because the right to vote is a fundamental right, theconstitutionality of state election procedures rests onwhether the procedures are fundamentally fair.Fundamental fairness requires election officials to refrainfrom changing the rules for counting ballots after anelection to alter the outcome. Fundamental fairness alsorequires each State to establish - before an election -objective and meaningful standards for counting ballotsand adhere to those standards after the election to protectthe First and Fourteenth Amendment rights of bothvoters and candidates. Adherence to these guarantees offundamental fairness requires special deference to theauthority of legislatures to establish rules for countingvotes before an election rather than allowing court tocreate retroactively rules for resolving post-electiondisputes. Because the decision of the Supreme Court ofFlorida violated these requirements of due process andfundamental fairness in the election of the President andVice President of the United States, this Court shouldreverse that decision.


This Court has long held that voting is "a fundamentalpolitical right, because preservative of all rights." YickWo v. Hopkins, 118 U.S. 356, 370 (1886). It is wellestablished that "the right of qualified voters, regardlessof their political persuasion, to cast their votes effectively. . . rank[s] among our most precious freedoms. . . . Otherrights, even the most basic, are illusory if the right to voteis undermined." Williams v. Rhodes, 393 U.S. 23, 3031(1968). Because the right to vote is so fundamental, "anyalleged infringement of the right of citizens to vote mustbe carefully and meticulously scrutinized." Reynolds v.Sims, 377 U.S. 533, 562 (1964). In this context, "the rightof suffrage can be denied by a debasement or dilution ofthe weight of a citizen's vote just as effectively as bywholly prohibiting the free exercise of the franchise." 554.

In 1995, the United States Court of Appeals for theEleventh Circuit was called upon to apply these principlesin Roe v. Alabama, a case involving a state circuit court'sorder to count absentee ballots that had not been properlywitnessed or notarized in accordance with state law. TheEleventh Circuit correctly observed in Roe I that "federalcourts do not involve themselves in garden varietyelection disputes. If, however, the election process itselfreaches the point of fundamental unfairness, a violationof the due process clause may be indicated and reliefunder § 1983 therefore in order." 43 F.3d at 580 (citationsand internal quotation marks omitted) (quoting Curry v.Baker, 802 F.2d 1302, 1315 (11th Cir.), cert. denied, 479U.S. 1023 (1986), in turn quoting Welch v. McKenzie, 765F.2d 1311, 1317 (5th Cir. 1985), and Duncan v. Poythress,657 F.2d 691, 703 (5th Cir. Unit B Sept. 1981), cert.denied, 459 U.S. 1012 (1982)). Like the case now beforethis Court, however, Roe was no "garden variety" electiondispute. Like this case, the post-election change inelection procedures by the state courts raised seriousquestions about the fundamental fairness of the electionprocess. Because the situation in Roe v. Alabama was sosimilar to the present case, Roe provides an excellentanalytical framework for examining the due processprinciples at stake in this case.

  1. Roe v. Alabama

Before the November 1994 general election, it was auniform statewide practice in Alabama to disregardabsentee ballots that had not been properly notarized orwitnessed. Roe I, 43 F.3d at 578; Roe III, 68 F.3d at 40607 (stating that the district court's findings, which were"supported overwhelmingly by the evidence," showedthere had been no prior practice, in 66 of Alabama's 67counties, of counting improperly executed absenteeballots). A state circuit court nonetheless orderedunwitnessed absentee ballots to be counted after the 1994general election. Because the candidates for Chief Justicewere separated by a mere 200 to 300 votes before thecourt entered its order, the order placed the outcome ofthe race for Chief Justice in doubt. Roe I, 43 F.3d at 578.As the Court is no doubt aware, the 200 to 300 votespread in Roe was similar to the narrow marginseparating presidential candidates George W. Bush andAlbert Gore, Jr., in the election in Florida.

The Alabama court's order was challenged in a 42U.S.C. § 1983 (1994) action brought in the United StatesDistrict Court for the Southern District of Alabama. Thedistrict court promptly granted a preliminary injunctionhalting the counting of unwitnessed absentee ballots. Inits order, the district court specifically found that it wasan established practice in Alabama not to countunwitnessed absentee ballots. Moreover, the districtcourt held that adhering to the state court order andchanging the practice of not counting unwitnessedabsentee ballots would violate the First and FourteenthAmendments. Roe I, 43 F.3d at 579.

On appeal to the Eleventh Circuit, the Roe plaintiffsargued that enforcement of the state court order

would constitute a retroactive validation of apotentially controlling number of votes in theelections for Chief Justice and Treasurer thatwould result in fundamental unfairness and wouldviolate plaintiffs' right to due process of law inviolation of the Fourteenth Amendment, and thatthis violation of the plaintiffs' rights to vote and. . . have their votes properly and honestly countedconstitutes a violation of the First and FourteenthAmendments.
Id. at 580 (internal quotation marks omitted). The Roeplaintiffs further argued "that the [state] circuit court'sorder requiring the state's election officials to perform theministerial act of counting the contested absentee ballots,if permitted to stand, will constitute a retroactive changein the election laws that will effectively stuff the ballotbox,' implicating fundamental fairness issues." Id. at 581(footnotes omitted). The Eleventh Circuit agreed with theRoe plaintiffs and determined that departing fromAlabama's longstanding policy of not countingunwitnessed absentee ballots would indeed violate theFirst and Fourteenth Amendments.

In deciding Roe I, the Eleventh Circuit held thatdeparting from Alabama's previous practice of notcounting unwitnessed absentee ballots "would have twoeffects that implicate fundamental fairness." Id. "First,counting ballots that were not previously counted woulddilute the votes of those voters who met the [statutory]requirements . . . . Second, the change in the rules afterthe election would have the effect of disenfranchisingthose who would have voted but for the inconvenienceimposed by the [statutory requirements]." Id. The courtalso stated that "had the candidates and citizens ofAlabama known that something less than the signature oftwo witnesses or a notary attesting to the signature ofabsentee voters would suffice, campaign strategies wouldhave taken this into account and [those] who did not votewould have voted absentee." Id. at 582 (distinguishingPartido Nuevo Progresista v. Barreto Perez, 639 F.2d 825(1st Cir. 1980), cert. denied, 451 U.S. 985 (1981)). Onthese grounds - that retroactively counting improperlyexecuted absentee ballots would disenfranchise or dilutethe votes of others and that altering election rules posthoc would upset the legitimate expectations of the votersand candidates - the Eleventh Circuit ruled thatcomplying with the state court's post hoc change inelection procedures would violate the First andFourteenth Amendments.

The Eleventh Circuit refused to require the Roeplaintiffs to pursue their claims in state court. Id. at 582.The court noted that, under Ala. Code § 17-15-6 (1995),Alabama courts are jurisdictionally barred from decidingstatewide election contests. The court concluded that thestate legislature, which has exclusive authority to decidean election contest involving the office of Chief Justice, seeAla. Code § 17-15-52 (1995), was an "not an adequate orproper forum for the resolution of the federalconstitutional issues presented." Roe I, 43 F.3d at 582.

The Court of Appeals did, however, abstain fromfinally adjudicating the plaintiffs' claims to certify aquestion to the Alabama Supreme Court asking whetherabsentee ballots that were not properly notarized orwitnessed could nonetheless be counted under Alabamalaw. Id. at 583. The Supreme Court of Alabama, inanswering the certified question, affirmed the order of thestate circuit court and held that unwitnessed absenteeballots in "substantial compliance" with state law shouldbe counted. Roe v. Mobile County Appointment Bd., 676So. 2d 1206, 122122 (Ala. 1995).

Within a month of the Alabama Supreme Court'sdecision, the Eleventh Circuit remanded the case to thedistrict court for trial. Roe II, 52 F.3d at 301. TheEleventh Circuit directed the district court specifically toaddress seventeen factual issues. Chief among these wasthe question of whether there was an established practiceof including or excluding improperly executed absenteeballots in previous elections in Alabama. Id. at 30203.Following Roe II, the defendant class of voters who soughtto have their unwitnessed absentee ballots countedpetitioned this Court for a writ of certiorari. That petitionwas denied. Davis v. Alabama, 516 U.S. 908 (1995).

Following a three-day trial, the district court foundthat "the practice in Alabama prior to the November 8,1994 election had been uniformly to exclude [improperlyexecuted absentee] ballots." Roe III, 68 F.3d at 40607.Accordingly, the district court concluded the Roe plaintiffswere entitled to relief and entered an order directing theAlabama Secretary of State to certify the results of theChief Justice and State Treasurer elections withoutcounting unwitnessed absentee ballots. Id. at 407. Thedefendant class of voters that had cast improperlyexecuted absentee ballots then appealed to the EleventhCircuit. Id.

In Roe III, the Eleventh Circuit concluded that thedistrict court's findings of fact were "supportedoverwhelmingly by the evidence." Id. The appeals courtalso reaffirmed its holdings in Roe I and Roe II. Id. at408. The court again rejected the appellants' plea toabstain and allow the state courts to decide the contestedelections for Chief Justice and State Treasurer. Theappellants argued, in essence, that state courts shouldhave been given the opportunity to apply the AlabamaSupreme Court's opinion in Roe v. Mobile CountyAppointment Board and grant them relief by orderingtheir improperly executed absentee votes to be counted.The Eleventh Circuit, however, rejected this argument,again noting that it was "highly doubtful" that the statecourts had jurisdiction to grant such relief given thejurisdictional bar in Ala. Code § 17-15-6. Id. The courtdetermined that the Roe plaintiffs had no adequate stateforum for the vindication of their federal constitutionalclaims and promptly affirmed the district court's order.Because time was of the essence, the Court of Appealsdirected its clerk to issue the court's mandate instanter.

The defendant class of voters who wanted theirimproperly executed absentee ballots countedimmediately applied for a stay from this Court, andJustice Kennedy granted a temporary stay on October 14,1995, while this Court considered the matter. The Courtthen denied the stay application on October 19, 1995.Hellums v. Alabama, 516 U.S. 938 (1995). Chief JusticePerry O. Hooper, Sr., was certified as the winner of the1994 election and sworn into office the next day.

  1. The Costs and Consequences of Roe v.Alabama

Roe v. Alabama ended with a reaffirmation of theguarantees of the First and Fourteenth Amendments, asinterpreted by this Court, that state election proceduresmust be fundamentally fair. Unfortunately, however,complete justice was not done because the harm causedby the state circuit court order could not be undone.Because of the state circuit court's order, Chief JusticeHooper was not certified as the winner of the November1994 election until October 20, 1995. See Ala. Rptr., 656659 So. 2d, at IX n.2. He was sworn in later the sameday, more than nine months after he should have takenoffice on January 16, 1995. Id. n.1. As a result of thecircuit court's attempt to change the rules for countingballots after the election, the people of Alabama weredeprived of their choice for Chief Justice for more thannine months - one-eighth of his total term of office. TheEleventh Circuit's decision in Roe v. Alabama could notgive those nine months back to the people of Alabama.

What is more, the incumbent Chief Justice, who lostthe November 1994 election, "continued in office" duringthe nine months after his term expired until Chief JusticeHooper was sworn in. Id. The State then had to paysalaries to both men for that nine-month period. Thelitigation itself also cost the State of Alabama hundreds ofthousands of dollars.

The process now unfolding in Florida as a result of thechange in state law by the Supreme Court of Floridaportends different, but perhaps more frightening ills. Theprocess now underway in Florida is undermining publicconfidence in the presidency and the Republic itself asvoters across the country watch canvassing boards stareat tiny pieces of cardboard to divine whether a voter's"dimpled chad" means the voter wanted to vote for acandidate or decided not to vote at the last minute. Ifpost-election changes to election procedures in Florida areapproved by this Court, other states will be flooded withsimilar post-election litigation. Any disgruntledcandidate who loses by a narrow margin will have anincentive to file a protest, argue for a new set of rules, andthen keep counting until the votes are "found." Suchuntoward results are avoided when federal courts upholdthe due process requirement that the rules for countingballots not be changed after the election to alter theoutcome.

  1. Other Cases Invalidating Post Hoc Changesin Election Procedure

Roe represents an extreme example of what canhappen when election procedures are changed after anelection. The situation in Roe was not unique, however.Other circuits have intervened in the name of due processto halt similar, fundamentally unfair post hoc changes inelection procedures.

In Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970), forexample, the Seventh Circuit addressed a change in thepetition requirements for candidates for alderman in theCity of Chicago. The City Board of ElectionCommissioners applied a new "anti-duplication" rule todisallow voters' signatures on more than one candidate'spetition to run for alderman; the Board also disallowedany signatures without a middle initial. Id. at 1055. TheSeventh Circuit held that the Board's failure to forewarncandidates of these new, rigorous requirements violateddue process. Id.

In Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978), theFirst Circuit ordered a new election after state electionofficials handed out absentee ballots that were latervoided by the state supreme court after the election. 107880. The court observed that federal courts haveintervened in state elections where

the attack was, broadly, upon the fairness of theofficial terms and procedures under which theelection was conducted. The federal courts werenot asked to count and validate ballots and enterinto the details of the administration of theelection. Rather they were confronted with anofficially-sponsored election procedure which, in itsbasic aspect, was flawed.
Id. at 1078.

In Brown v. O'Brien, 469 F.2d 563 (D.C. Cir.), staygranted, 409 U.S. 1 (per curiam), vacated as moot, 409U.S. 816 (1972), the District of Columbia Circuitconcluded that a political party's retroactive application ofa new and unannounced ban on winner-take-allpresidential primaries violated due process. Id. at 570.The court noted that, if the party had announced its rulechange prior to the primaries, candidates might havecampaigned differently, voters might have voteddifferently, and the State of California might have alteredits delegate selection scheme. Id. at 56970. The courtobserved that "there can be no dispute that the veryintegrity of the process rests on the assumption that clearrules will be established and that, once established, theywill be enforced fairly, consistently, and withoutdiscrimination so long as they remain in force." Id.

Finally, in Duncan v. Poythress, 657 F.2d 691 (5th Cir.Unit B. Sept. 1981), cert. dismissed, 459 U.S. 1012 (1982),the former Fifth Circuit held that state officials' refusal tohold a special election to fill a vacancy on the statesupreme court in accordance with state law violated dueprocess. Id. at 708. The court observed that it could"imagine no claim more deserving of constitutionalprotection than the allegation that state officials havepurposely abrogated the right to vote, a right that isfundamental to our society and preservative of allindividual rights." Id. at 704.

These cases underscore that the right to vote, atbottom, is a federal right. See Griffin v. Burns, 570 F.2dat 1077. If a state election procedure is so flawed as to befundamentally unfair, that process violates due process.Where, as in Roe and in this case, a state supreme courtmaterially changes state election procedure after anelection has occurred and while votes are still beingcounted, that change is fundamentally unfair and violatesthe due process rights of the voters and the candidates.



As was the case in Roe v. Alabama, the judgment ofthe Supreme Court of Florida in this case substantiallychanged Florida election procedures after the election andapplied those changes retroactively. A comparison ofFlorida law prior to the election and the changes imposedby the Supreme Court of Florida illustrates theunfairness of this result. By changing Florida law afterthe election, the Supreme Court of Florida violated theFirst and Fourteenth Amendment rights of the Floridavoters and the candidates.

  1. The Judgment of the Supreme Court ofFlorida Retroactively Changed FloridaElection Procedures.

At the close of an election in Florida, any candidate orvoter may file a protest contending that the electionreturns are erroneous. Fla. Stat. § 102.166(1) (2000).During the protest period, the individual voters may notpetition for a manual recount; only a candidate, politicalcommittee, or political party may request a manualrecount at this time. Fla. Stat. § 102.166(4)(a). Under theoriginal statutory scheme, the protest period ended afterseven days, at which time the election was to be certified.Fla. Stat. § 102.111(1) (2000). After the results arecertified, an election contest may be filed. Fla. Stat.§ 102.168(1) (2000). Any unsuccessful candidate and anyvoter or taxpayer may file an election contest. Fla. Stat.§ 102.112(1). Although an election contest in Florida hasno express time constraint, in the instant case, thecontest would have to be complete by the December 12deadline for selecting presidential electors. See 3 U.S.C. §5. Unlike an election protest, an election contest inFlorida provides for full factual pleading of all complaintsincluding misconduct on the part of election officials,receipt of illegal votes, and improper rejection of legalvotes. Fla. Stat. § 102.112(3).

By ordering the Secretary of State to accept untimelymanual recount returns through Sunday, November 26,at 5:00 p.m.,1 and to include these returns in the certified

1 The Florida Supreme Court designated Monday, November 27, at9:00 a.m., as an alternative time should the Secretary of State's officenot be open on Sunday. Pet. App. at 38a.

election results, the court fundamentally altered thenature of election protest and contest procedures underFlorida law. Pet. App. at 38a. The holding of theSupreme Court of Florida, that "the Secretary [of State]may reject a Board's amended returns only if the returnsare submitted so late that their inclusion will preclude acandidate from contesting the certification or precludeFlorida's voters from participating fully in the federalelection process," also fundamentally altered thediscretion granted to the Secretary of State by the Floridalegislature. Id. at 37a.

These material changes in Florida election law, whichthe Supreme Court of Florida applied retroactively, createa fundamentally unfair result. First, the requirementthat election results be tabulated within seven days of theelection, Fla. Stat. § 102.111, has been eviscerated. Thecourt instead created a new judicial timetable forprotesting and contesting election results: It enlarged thestatutory protest period from seven days to 19 days andshortened the contest period from 29 days to 16 days. Pet.App. at 38a. Second, where there was no statutoryprovision for the filing of amended returns, much less lateones, there is now a judicial mandate that the Secretaryof State accept such amended returns unless they are solate as to "preclude a candidate, elector, or taxpayer fromcontesting the certification of the election . . . or . . . byprecluding Florida voters from participating fully in thefederal electoral process." Id. at 37a. Third, bynarrowing the time frame within which a contest may befiled, the Florida Supreme Court restricted the ability ofunsuccessful candidates and individual voters tochallenge the outcome of the election in an electioncontest based on allegations of misconduct or illegality.

  1. The Judgment of the Florida Supreme CourtGives Greater Weight to Votes In CountiesWhere a Protest Is Filed by Delaying ElectionContests Statewide.

By enlarging the statutory protest period from sevendays to 19 days and shortening the contest period from 29days to 16 days, the Supreme Court of Florida arbitrarily(and retroactively) gave greater weight to votes cast inthe counties where protests had been filed by delayingelection contests statewide. Under the judicially enlargedprotest period, the attendant manual recounts have theeffect of placing the votes of the four affected countiesunder close scrutiny while at the same time denying thisscrutiny in the remaining 63 counties where voters mustwait for this period to end before they can request thattheir votes be manually counted as part of an electioncontest. Only a party or candidate can demand a manualrecount in the protest period, Fla. Stat. § 102.166(4)(a),but any voter or tax payer can request manual recountsas part of an election contest to be conducted at thediscretion of the circuit judge. See Fla. Stat. § 102.168(8).

The votes in the four protest counties werepainstakingly examined for 19 days, while those in theremainder of the state will only have the possibility ofreview for a maximum of 16 days. Thus, the holding ofthe Supreme Court of Florida has impermissibly givengreater weight to votes in the four protest counties thanto the votes cast in the rest of the state. "Overweightingand overvaluation of the votes of those living [in aparticular area] has the certain effect of dilution andundervaluation of the votes of those living [elsewhere]. . . .Weighting the votes of citizens differently, by any methodor means, merely because of where they happen to reside,hardly seems justifiable." Reynolds v. Sims, 377 U.S. at563. The judgment of the Supreme Court of Floridafavored the counties where protests were filed and dilutedthe votes from the remainder of Florida in violation of theDue Process Clause of the Fourteenth Amendment.

  1. By Changing the Statutory Protest andContest Periods, the Florida Supreme CourtGave an Unfair Advantage to a CampaignThat Chose to "Front-Load" Its ChallengesInto the Protest Period.

Under Florida law as it existed at the time of theelection, a candidate could reasonably forego requesting amanual recount as part of an election protest because theprotest period was so short. The candidate couldreasonably choose to save his request for a manualrecount until an election contest, where there would bemore time. This was particularly true where the contestperiod was originally over four times longer than theprotest period and, in addition to the manual recount,afforded the candidate the opportunity to create a fullevidentiary record of all alleged election improprieties orillegality. Fla. Stat. § 102.112(3). As is evident from theevents of the past few weeks, a manual recount can be anarduous and time-consuming process taking longer than aweek - especially in large counties. A candidate whodesired such recounts would likely know this and couldreasonably decide to wait and request the manualrecounts as part of an election contest where there wouldbe more time.

By enlarging the statutory protest period from sevendays to 19 days and shortening the contest period from 29days to 16 days, the Florida Supreme Court thwarted thereasonable expectations of the candidates and gave afundamentally unfair advantage to a campaign that choseto "front-load" its challenges into the protest period. Thispost-election change benefited the "front-loading"campaign by giving it the majority of the available timefor its challenges while reducing the time available to theother campaign to respond in a contest. Had thecandidates known that the protest period would havebeen lengthened, campaign strategies would have takenthis into account. See Roe I, 43 F.3d at 582; Brown v.O'Brien, 469 F.3d at 56970. By retroactively changingthe election rules, however, the Supreme Court of Floridadeprived the candidates of this opportunity.

  1. Counting Improperly Marked Ballots ThatWere Not Counted in the Past Dilutes TheVotes of Those Who Properly Marked TheirBallots.

"A citizen's right to a vote free of arbitraryimpairment by state action has been judicially recognizedas a right secured by the Constitution . . . ." Baker v.Carr, 369 U.S. 186, 208 (1962). During this election, theoverwhelming majority of Floridians who cast their votesusing punch-card ballots did so in accordance with theinstructions for properly casting ballots, and those voteswere accurately tabulated in keeping with the principlesof due process. As noted by the Secretary of State:

In the weeks before the November 7, 2000,general election, each registered voter in Floridawas provided with a sample ballot and detailedinstructions on how to vote according to themethod used in his or her precinct. Additionally, acopy of the instructions was placed prominently ineach voting booth. See Fla. Stat. § 101.46. Inthose districts using punch cards, the instructionsexplained how a voter was to select and punch outthe appropriate chad on the ballot. App. at 14a.The instructions included this specific direction:
Id. When voters followed the instructions,including the removal of any loose chips leftattached to their ballots, the automatic tabulationaccurately tabulated the ballots. There is nocontention otherwise. Only the ballots of thosevoters who, by their own actions, failed to clearlyindicate their elective choices, as directed, wouldbe affected by the manual recount at issue.
Harris Resp. to Pet. for Cert. at 15 n.12. Thus, therequirements for casting a correct vote were wellestablished, had been made available to every voter priorto election day, and were followed by the overwhelmingmajority of voters.

Changing the rules for counting partially punchedballots in the protest counties after the election would befundamentally unfair. Allowing certain counties to countso-called "dimpled chads" and stray marks as votesconstitutes an arbitrary deviation from election rules anddilutes the weight given to votes that were properlypunched and counted. A post-election change in manualrecount procedures in one county in Florida similarlydilutes the votes of those who submitted partiallypunched ballots in counties that did not conduct manualrecounts.

Changing the rules for counting partially punchedballots only in the protest counties also dilutes the votesof those whose partially punched ballots are leftuncounted in their county's manual recount because theircounty adheres to its pre-election rules. By ordering theSecretary of State to accept arbitrary, untimely recountsand include them in the certified election results, theFlorida Supreme Court sanctioned fundamentally unfairpractices and violated due process.

  1. By Changing the Statutory Protest andContest Periods, the Florida Supreme CourtDeprived Voters of the Right to Prosecute anEffective Election Contest.

Under Florida law, a voter may file an election contest- but only after the election has been certified at the endof the protest period. Fla. Stat. § 102.112(1). Byextending the protest period at the expense of the contestperiod, the Florida Supreme Court has frustratedindividual voters' due process rights to an effectiveelection contest by leaving an inadequate length of timefor such a challenge.

The contest period was originally over four timeslonger than the protest period and, in addition to themanual recount, afforded the complaining voter orcandidate an opportunity to create a full evidentiaryrecord of all alleged election improprieties or illegality.Fla. Stat. § 102.112(3). As is evident from the events ofthe past few weeks, a manual recount is an arduous andtime-consuming process. Under the original electionrules, voters who contested the election would have had29 days in which to challenge the election and request amanual recount. Under the holding of the FloridaSupreme Court, the voters are afforded a mere 16 days,three days less than the new protest period, and 13 daysless than they were entitled to have under Florida law.

Not only has this new judicial timetable prejudicedthe rights of voters by greatly restricting the time inwhich they can pursue a contest, it has also prejudicedany such contest by means of the delay. During the court-ordered delay for election protests, ballots in the protestcounties have been repeatedly handled, compromising thephysical integrity of the individual ballots. Pet. for 5. Thus, evidence material to a contest has beendamaged and lost. The Florida Supreme Court's newtimetable has, therefore, so prejudiced the voters' dueprocess rights to an effective contest as to constitute afundamentally unfair result.

  1. Counting Partially Punched Ballots WithoutClear Standards Attributes Political Speechto Voters Without Their Consent and DilutesProper Votes by "Stuffing the Ballot Box."

In Baker v. Carr, this Court noted that "[a] citizen'sright to a vote free of arbitrary impairment by stateaction has been judicially recognized as a right secured bythe Constitution, when such impairment resulted fromdilution by . . . a stuffing of the ballot box." 369 U.S. at208 (citing Ex parte Siebold, 100 U.S. 371 (1879), andUnited States v. Saylor, 322 U.S. 385 (1944)). Dependingon the location, election officials in Florida are currentlydivining the will of individual voters based on either adiscretionary majority vote of local officials or theindividual subjective views of the persons handling theballots. By requiring the Secretary of State to accept theuntimely manual recounts and include them in thecertified election results, the Florida Supreme Courtordered the acceptance of this standardless procedure and"stuffed the ballot box" in violation of voters' FirstAmendment right to freedom of expression andFourteenth Amendment right to due process.

It is well established that "the right of qualifiedvoters, regardless of their political persuasion, to casttheir votes effectively . . . rank[s] among our mostprecious freedoms. . . . Other rights, even the most basic,are illusory if the right to vote is undermined." Williamsv. Rhodes, 393 U.S. 23, 3031 (1968). The FirstAmendment protects the right of our nation's citizens notonly to entertain their individual political beliefs, but alsoto express them. Id. at 30; see also Wooley v. Maynard,430 U.S. 705, 714 (1977) ("The right to speak and theright to refrain from speaking are complementarycomponents of the broader concept of individual freedomof mind.") When a citizen casts a vote, it is the ultimateexpression of individual political speech and constitutesthe culmination of the individual right to choose therepresentative governing body.

Where there is no clear standard by which to evaluateinadequately marked ballots, election officials, left totheir individual discretion, will inevitably place politicalspeech in the mouths of those voters unwilling to vote foreither candidate. For example, voters may enter thevoting booth and have second thoughts about theirdecisions and change their minds mid-vote, leaving a"dimpled chad." If election officials count thoseindentations as votes, they are "stuffing the ballot box" byputting words into the voters' mouths.2 The governmentcannot compel voters to speak when they have chosen to

2 See, e.g., United States v. Saylor, 322 U.S. at 388 (holding thatelectors have the right to have their vote honestly counted and notdiluted by stuffing the ballot box).

remain silent. West Virginia v. Barnette, 319 U.S. 624,63141 (1943).

Under the Due Process Clause of the FourteenthAmendment, voters have the right to have theirindividual ballots correctly counted and reported. Gray v.Sanders, 372 U.S. 368, 380 (1963). In this race, numerousballots were correctly punched for the bulk of the races,leaving the choice for President and Vice Presidentunselected. This indicates that, had these voters wantedto vote for any given presidential candidate, they not onlyknew how to do so,3 they had demonstrated their abilityto do so. There was no option on these ballots for "NONEOF THE ABOVE." By correctly selecting candidates in otherraces and leaving only a "dimpled chad" or entirelyunmarked portion for the presidential race, these votersexercised their right to refrain from speaking under theFirst Amendment. See Wooley, 430 U.S. at 714. Electionofficials should not be allowed to speak where voters haveremained silent; for, with that silence, these citizens havevoiced their views on the presidential race. See Barnette,319 U.S. at 641 ("We set up government by consent of thegoverned, and the Bill of Rights denies those in power anylegal opportunity to coerce that consent. Authority here isto be controlled by public opinion, not public opinion byauthority.")

In the absence of a clear standard, the divination ofthese improperly marked ballots ultimately says moreabout the intent of the election officials than the intent ofthe voters. To affirm this arbitrary conduct, this Courtwould be "required to say that a Bill of Rights whichguards the individual's right to speak his own mind, left it

3 As previously noted, each voter was informed of the correctmeans of casting a ballot prior to the election.

open to public authorities to compel him to utter what isnot in his mind." Id. at 634. By impermissiblyattributing this political speech to citizens who elected notto vote in a particular race, election officials effectively"stuff the ballot box" and dilute the weight of the votes ofthose citizens who actually voted in this race. Cf. Ex parteSiebold, 100 U.S. 371; United States v. Saylor, 322 U.S.385.

This action has violated the due process rights of thosecitizens who elected not to vote in this race and expectedthat their silence would be interpreted as it was intended- as a vote for "NONE OF THE ABOVE." See Baker v. Carr,369 U.S. at 208; United States v. Saylor, 322 U.S. at 388("This case affirms that the elector's right intended to beprotected is not only that to cast his ballot but that tohave it honestly counted."); Gray v. Sanders, 372 U.S. at380 ("The [United States Supreme] Court has consistentlyrecognized that all qualified voters have a constitutionallyprotected right to cast their ballots and have them . . .correctly counted and reported.' ")(citations omitted).Voters who had second thoughts and left only a "dimpledchad" could reasonably expect, after reading the votinginstructions, that their "dimpled chad" would not becounted. Thus, by ordering the Secretary of State toaccept the untimely manual recounts and include them inthe certified election results, the Florida Supreme Courtviolated the due process rights of both the voters whoclearly selected a presidential candidate and the voterswho chose to abstain from casting a vote in thepresidential election.



Another similarity between the Roe litigation and thedecision of the Florida Supreme Court is the special needfor deferring to the exclusive, constitutional authority oflegislative bodies to establish rules for voting before anelection rather than allowing courts to create rules forvoting to apply retroactively in post-election disputes. Inboth the Roe litigation and this case, the state courtsfailed to defer to the supremacy of the legislatures withdisastrous results. In each case, the legislature also hadsought to prevent the judicial chicanery that lateroccurred. Federal relief then became necessary to fulfillthe guarantees of the First and Fourteenth Amendmentsthat state courts not change legislative rules retroactivelyto alter the outcome of an election.

In the Roe litigation, the State's pre-election rulesplainly prohibited post-election intervention by theAlabama courts. Indeed, the Alabama Legislature hadprohibited judicial intervention in elections in thefollowing extraordinary terms:

No jurisdiction exists in or shall be exercised byany judge, court or officer exercising chancerypowers to entertain any proceeding forascertaining the legality, conduct or results of anyelection, except so far as authority to do so shall bespecially and specifically enumerated and set downby statute; and any injunction, process or orderfrom any judge, court or officer in the exercise ofchancery powers, whereby the results of anyelection are sought to be inquired into, questionedor affected, or whereby any certificate of election issought to be inquired into or questioned, save asmay be specially and specifically enumerated andset down by statute, shall be null and void andshall not be enforced by any officer or obeyed byany person; and should any judge or other officerhereafter undertake to fine or in any wise dealwith any person for disobeying any such prohibitedinjunction, process or order, such attempt shall benull and void, and an appeal shall lie forthwiththerefrom to the supreme court then sitting, ornext to sit, without bond, and such proceedingshall be suspended by force of such appeal; and thenotice to be given of such appeal shall be 14 days.
Ala. Code § 17-15-6 (1995) (discussed in Roe I, 43 F.3d at57778 & n.4; Roe III, 68 F.3d at 40809 & n.7). In theRoe context of the election of the Chief Justice, Alabamalaw also provided that only the state legislature couldhear and decide an election contest. Ala. Code §§ 17-15-50 to 17-15-63 (1995) (discussed in Roe I, 43 F.3d at 577).

The Eleventh Circuit found these provisions"especially significant in light of the common law ofAlabama." Id. at 578 n.4. The Roe court recognized thatAlabama law required strict adherence to legislative rulesin an election contest:

[E]lection contests exist only by virtue of statutoryenactment and such statutes are to be strictlyconstrued. [Groom v. Taylor, 235 Ala. 247, 178 So.33 (1938)]. "The right to contest an election is nota common-law right (Cosby v. Moore, 259 Ala. 41,65 So.2d 178 [(1953)]). Elections belong to thepolitical branch of the government, and, in theabsence of special constitutional or statutoryprovisions, are beyond the control of judicialpower." 29 C.J.S. Elections § 246. Further at §247 the rule is stated that statutes providing forelection contests "should be strictly construed orobserved as to those provisions for inauguratingthe contest and which are necessary to jurisdiction[citing Walker v. Junior, 247 Ala. 342, 24 So. 2d431 (1945); Groom, 235 Ala. 247, 178 So. 33] . . . .An election contest being purely statutory, thecourts are limited in their investigation to suchsubjects as are specified in the statutes. Theremedy is not to be extended to include cases notwithin the language of the statute; and the right ofcontest is not to be inferred from doubtfulprovisions."
Roe I, 43 F.3d at 578 n.4 (quoting Longshore v. City ofHomewood, 277 Ala. 444, 446, 171 So. 2d 453, 455 (1965)).

Similarly, this case presents important issues oflegislative supremacy in election matters that call intoquestion the fundamental fairness of the decision of theFlorida Supreme Court. The ultimate source of thatlegislative supremacy, of course, is the Constitution,which provides "Each State shall appoint, in such manneras the Legislature thereof may direct, a Number ofElectors . . . ." U.S. Const. art. II, § 1 (emphasis added).The Constitution does not refer this matter to the entireState government but to the State Legislature alone.Likewise, the National Legislature required, more than acentury ago, that any post-election controversy regardingthe appointment of presidential electors be resolved "bylaws enacted prior to the day fixed for the appointment ofthe electors." 3 U.S.C. § 5. Representative William CraigCooper of Ohio explained, in the congressional debate onthis law, that Congress should prevent state judicialmischief in the appointment of presidential electors:"How could any court, how could any tribunalintelligently solve the claims of parties under a law whichis made concurrent, to the very moment perhaps, with thetrouble which they are to settle under the law?" 18 Cong.Rec. 47 (Dec. 8, 1886).Congress also provided that inthe event of any failure to appoint electors "on the dayprescribed by law, the electors may be appointed on asubsequent day in such a manner as the legislature ofsuch state may direct." 3 U.S.C. § 2 (1994) (emphasisadded).

Both the Framers and Congress contemplated that theappointment of presidential electors was to be theexclusive province of state legislatures. "Without theintervention of the State legislatures, the President of theUnited States cannot be elected at all. They must in allcases have a great share in his appointment, and willperhaps, in most cases, of themselves determine it." TheFederalist No. 45, at 291 (James Madison) (ClintonRossiter ed., 1961). As in Roe, the judicial usurpation ofthis state legislative authority by the Supreme Court ofFlorida violated the Constitution, and its fundamentalunfairness must be redressed by the federal judiciary.



The judgment of the Supreme Court of Florida shouldbe reversed.

Respectfully submitted,

Attorney General of Alabama
Counsel of Record
Assistant Attorneys General

State of Alabama
11 South Union Street
Montgomery, Alabama 36130-0152
(334) 242-7300

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